Leiden Expat Center

Introduction
The Dutch government has last summer accepted the plans to drastically change our holiday legislation. By the introduction of the new law on 1 January 2012, saving holidays will be past time for the greater part. Therefore, it is good to take a look at our holiday legislation and consider what changes are in store for us.

Current system holiday legislation
Yearly, an employee legally has the right to have holidays for the duration of four times the agreed weekly working hours. According to the law, the employer is required to determine these holidays based on the wishes of the employee, unless important reasons are standing up to that situation. With this system, it’s now legally allowed when an employee does not enjoy any of the holidays over the year. The employee will than retain the right to the remain holidays for the next five years, counting from the year in which the right arose. In other words: the holidays will be invalid after five years. For an employer there is no possibility to exclude the saving of holidays in an agreement. The provisions of the holiday rights for employees are non-restrictive, which means that there are no exceptions allowed in a contract.

The result of this situation, is that so-called ‘holidayreservoirs’ arise. These holidayreservoirs contain the saving of all legal holidays which are not enjoyed. This system was introduced in 2001 with the idea to make it possible for employees to save their holidays. The harm of this regulation, is that there is no guarantee that employees use their holidays in time to recover from the work that is done. Because of this, the actual function of holidays will be in danger.

New system holiday legislation
An employee has the right on holidays to have the opportunity to rest from the work that is done. This is called the recovery function. Under the new law, the recovery function will be the priority. By introducing the new holiday legislation, the holidays will be no longer valid for five years but only for six months counting from the year in which the right of the holidays arose. With the new law, employees are stimulated to enjoy their holidays in time instead of saving them. Only when the employee is not able to enjoy the holidays during that time, there is an exception for this rule. The exception as mentioned involves for example the situation that a female employee has maternity or when important reasons are standing up for the employer so that he cannot give permission to the employee to enjoy the holiday. The exception is also applied when the employee is ill. When the exception is applied, the holidays will not be deleted after six months. Moreover, the new holiday legislation is only applied on legal holidays, not on extralegal holidays.

Relation to European law
The roots of the new Dutch law can be found in Europe. Various case law of the European court states that article 7 of the Holidayregulation must be interpreted in this way, that the employee needs to enjoy the holidays in the same year as the year in which the right arose and that transfer to another year only is possible in special situations. In that way, the new Dutch law joins the vision of the European court.

Conclusion
On 1 January 2012 holiday reservoirs will be past time for the greater part. Employees will be stimulated to enjoy their holidays in time and employers will get more influence on this area. Currently there are no discussions in our country about the validity of holidays, this will be certainly different after 1 January 2012.